Orissa High Court
Rabiratan Sahu & Others vs State Of Odisha & Others ....... Opp. ... on 21 July, 2023
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.5668 of 2016
Rabiratan Sahu & others ....... Petitioners
-Versus-
State of Odisha & others ....... Opp. Parties
For Petitioners : Mr. S.D. Routray,
Advocate
For Opp. Party Nos.1, 2 & 5 : Mr. G.N.Rout, A.S.C.
For Opp. Party Nos.3 & 4 : Mr. P.C. Panda, Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE SANJAY KUMAR MISHRA
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Date of Hearing: 11.07.2023 Date of Judgment: 21.07.2023
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S.K. Mishra, J. The Petitioners, who are working as
Yardman/Watchman on contractual basis in the Regulated
Market Committee, Bargarh, shortly, RMC Bargarh, have
preferred the present Writ Petition for quashing of the Order
dated 9th September, 2015 passed by the Collector-Cum-
Chairman, Regulated Market Committee, Bargarh (Opposite
Party No.5), as at Annexure-14 whereby, their representation
for regularization of services against the vacant posts of
Yardman/Watchman was rejected. Also a prayer has been
made seeking for a direction to the Opposite Party Nos.2 to 5
to regularize their services and extend all such benefits, as is
due and admissible to the posts of Yardman/Watchman.
2. The case of the Petitioners, in short, is that, the
State Government under the Orissa Agricultural Produce
Markets Act, 1956, shortly, Act, 1956, established Market
Committee in every area in respect of agriculture produce. For
superintendence over such Market Committee, by Notification
in Official Gazette, a Board called the Orissa State
Agricultural Market Board, shortly, OSAM Board, was
established under Section 18-A of the Act, 1956. The OSAM
Board vide Office Order No.4106 dated 03.08.2007, as at
Annexure-1, intimated the Chairman/Secretary, RMC,
Bargarh that the Board has been pleased to accord approval
for creation of posts in different categories in favour of the
RMC, Bargarh. Pursuant to the said Order, the RMC, Bargarh
vide its Office Order No.754 dated 26.08.2007, as at
Annexure-2, requested to accord necessary approval of OSAM
W.P.(C) No.5668 of 2016 Page 2 of 39
Board, to fill up 45 numbers of vacant posts on contractual
basis from amongst the existing NMRs. On 31.08.2007
proceeding of the Appointment and Promotion Sub-Committee
of RMC, Bargarh was held in the Office of the Sub-Collector-
Cum-Chairman, RMC, Bargarh, wherein it was decided to
engage the present NMRs in the vacant posts on contractual
basis after obtaining due approval from the OSAM Board.
Thereafter, the OSAM Board, vide Order dated 20.09.2007, as
at Annexure-5, intimated the RMC, Bargarh about the
approval of the proceeding of the Sub-Committee of RMC,
Bargarh by the Hon'ble Minister, Co-operation-Cum-
Chairperson, OSAM Board and advised to observe due
formalities.
3. Pursuant to the Resolution of the Appointment
and Promotion Sub-Committee of RMC, Bargarh and approval
of OSAM Board, Bhubaneswar, the Sub-Collector-Cum-
Chairman, RMC, Bargarh vide Order No.953 dated
09.10.2007, as at Annexure-6, appointed the Petitioners
against the vacant posts on contractual basis with
consolidated salary. Since then, the Petitioners are
discharging their services on contractual basis. When no step
W.P.(C) No.5668 of 2016 Page 3 of 39
was taken for regularization of the services of the petitioners,
they made representation dated 05.08.2008 to the Secretary,
RMC, Bargarh, as at Annexure-7. The Secretary, vide his
letter dated 10.08.2008, submitted the said representation to
the General Manager, OSAM Board. On receipt of the said
representation, the General Manager, OSAM Board, vide his
letter dated 13.08.2008, sought for certain clarification and
justification from the Secretary, RMC, Bargarh, for
regularization of services of the contractual workers. In
response to the said letter, the Secretary, RMC, Bargarh,
furnished necessary clarification assigning reasons for
regularization of services of the Petitioners vide letter dated
22.09.2008, as at Annexure-10.
It is the further case of the Petitioners that after
proper verification of clarification given by the Secretary,
RMC, Bargarh, the General Manager, OSAM Board, approved
the proposal of regularization of all 45 numbers of contractual
workers including the Petitioners. Accordingly, the Petitioners'
services were regularized vide Order dated 27.09.2008, as at
Annexure-11. In spite of such regularization, the Petitioners
W.P.(C) No.5668 of 2016 Page 4 of 39
were not treated as regular employees and denied regular
scale of pay.
4. The Petitioners, finding no other alternative
remedy, moved this Court by way of preferring W.P.(C)
No.7905 of 2010. This Court, by its Order dated 06.07.2010,
disposed of the said Writ Petition by directing the Petitioners
to file fresh representation before Opposite Party No.5.
Accordingly, the Petitioners made representation before the
A.D.M-Cum-Chairman, Regulated Market Committee,
Bargarh. The Opposite Party No.5 rejected the said
representation in a mechanical manner. The Secretary of the
Regulated Market Committee, vide Memo No.2049 dated
21.09.2010, communicated the same to the Petitioners.
5. Being aggrieved by the said Order dated
21.09.2010 passed by the Chairman, Regulated Market
Committee, Bargarh the Petitioners again approached this
Court in W.P(C) No.15279 of 2010. The said Writ Petition was
also disposed of on 27.07.2015, directing the Petitioners to
file a fresh representation highlighting all their grievances
before the authorities. Pursuant to the said direction, the
Petitioners again made a representation to the Opposite Party
W.P.(C) No.5668 of 2016 Page 5 of 39
No.5 on 01.08.2015, as at Annexure-13. However, the
Collector-Cum-Chairman, Regulated Market Committee,
Bargarh, vide Order dated 9th September, 2015, as at
Annexure-14, rejected the representation of the Petitioners
solely on the ground that irregularly recruited engagees
cannot be regularized in blatant violation of settled
recruitment norms and transgression of provisions of ORV
Act.
6. Being aggrieved by the said order dated 9th
September, 2015, passed by the Opposite Party No.5, as at
Annexure-14, the Petitioners have approached this Court with
the prayers as detailed above.
7. Tough this is a matter of the year 2016, no
Counter Affidavit has been filed any of the Opposite Parties,
including State, till date. Further, when the matter was taken
up for final disposal, learned Counsel for the Opposite Party
Nos.3 & 4 wanted to rely on the Counter Affidavit filed by the
Board in WP(C) No.15279 of 2011, which has been annexed to
the Writ Petition as Annexure-12. On consent of the learned
Counsel for the parties, the matter was taken up for final
disposal.
W.P.(C) No.5668 of 2016 Page 6 of 39
8. Heard Mr. S.D. Routray, learned Counsel for the
Petitioners, Mr. G.N. Rout, learned Additional Standing
Counsel and Mr. P.C. Panda, learned Counsel for Opposite
Party Nos.3 & 4.
9. Mr. Routray, learned Counsel for the Petitioners
submitted that while passing the impugned order, the
Opposite Party No.5 has observed that there was an internal
communication between the Secretary, RMC, Bargarh with
General Manager, OSAM Board vide letter dated 22.09.2008
clarifying the position with respect to preparation of the merit
list for observance of ORV Act. After clarifications were
received, OSAM Board approved the proposal for
regularization of service of the Petitioners vide Order dated
27.09.2008. But in paragraph-9 of the impugned order, the
Collector has given an erroneous findings that there is no
evidence on record to testify that the contractual employees
i.e. the Petitioners, have been engaged in a transparent
manner following the procedure of recruitment and adhering
to the provisions of the ORV Act. He further submitted that
while passing the impugned order, Opposite Party No.5 lost
sight of the Counter Affidavit filed by the Secretary, RMC,
W.P.(C) No.5668 of 2016 Page 7 of 39
Bargarh and the Chairman of the Regulated Market
Committee in W.P.(C) No.15279 of 2011 (Annexure-12),
wherein it has been admitted before this Court that the
appointment of the Petitioners were as per the prevailing
norms and prior approval of the OSAM Board with proper
implementation of ORV Rules. Therefore, the findings of the
present Opposite Party No.5 in the impugned Order with
regard to non-observance of ORV Rules is not only illegal and
arbitrary but also contrary to their own Counter Affidavit filed
in W.P.(C) No.15279 of 2011 before this Court
10. Further, Mr. Routray submitted that the Collector
referring to various Judgments of the apex Court had come to
a conclusion that due to non-observance of the statutory
provisions, regularization of services of the petitioners cannot
be adhered to. But the Collector, while passing the impugned
Order, has failed to appreciate the law laid down by the apex
Court in its Constitution Bench judgment in Secretary,
State of Karnataka and others Vs. Umadevi & others,
wherein it has been categorically held that when an
incumbent ,who has been continuing against the sanctioned
vacant post for more than ten years without intervention of
W.P.(C) No.5668 of 2016 Page 8 of 39
any Court or Tribunal, not appointed illegally but irregularly,
can be considered for regularization of his service.
11. It was submitted that the Collector, while passing
the impugned order dated 9th September, 2015, observed that
the representation of the Petitioners after due consideration is
dismissed as devoid of merit as no irregularly recruited
engagees can be regularized in blatant violation of settled
recruitment norms and transgression of provisions of ORV
Act. But at the same time , the Collector has failed to
appreciate the law laid down by the apex Court in State of
Karnataka & other Vs. M.L. Kesari & others, reported in
(2010) 9 SCC 247, wherein the proposition of irregular and
illegal appointment, as laid down by the apex Court in the
case of Uma Devi (supra), has been clarified by observing
that, if an incumbent has been appointed against the
sanctioned post on contractual basis through a regular
recruitment process but not illegal recruitment process, his
case can be considered for regularization of service, if he has
completed more than ten years of service without intervention
of any Court or Tribunal.
W.P.(C) No.5668 of 2016 Page 9 of 39
The Collector also failed to appreciate the
provisions provided under the Act, 1956, more particularly,
Section-9 of the said Act and Rule 33 of the Orissa
Agricultural Produce Markets Rules, 1958, which envisages
that the Board is the OSAM Board and it is the competent
authority to take a decision for regularization of service of
Class-IV employees and there is no need of prior order or post
facto approval of any other competent Authority. In this
context, it has further been submitted that the Collector has
once again failed to appreciate the Judgment of this Court in
the case of Umesh Dalai Vs. State of Orissa and others
passed in O.J.C. No.15810 of 2001 dated 24.04.2008,
wherein the R.M.C. was directed by this Court to absorb those
Petitioners on regular basis.
12. Learned Counsel for the Petitioners further
submitted that the action of the Collector in not adhering to
the decision of the OSAM Board dated 27.09.2008, by virtue
of which the proposal for regularization of the Petitioners has
been approved by the OSAM Board, is not only illegal and
arbitrary but also contrary to the provisions of Orissa
Agricultural Markets Produce Act and Rules framed
W.P.(C) No.5668 of 2016 Page 10 of 39
thereunder inasmuch as the same is also discriminatory in
nature and is in violation of Articles 14 & 16 of the
Constitution of India.
13. To substantiate his argument, learned Counsel for
the Petitioners placed reliance on the Judgments of the apex
Court in Narendra Kumar Tiwari & others Vs. State of
Jharkhand & others, reported in (2018) 8 SCC 238, in Nihal
Singh & others Vs. State of Punjab & others, reported in
(2013) 145 SCC 65, Judgment of the coordinate Bench of this
Court in UCO Bank & others Vs. Sk. Fayajjudin, reported in
2020 (I) ILR-CUT 68, Judgment dated 03.07.2020 passed in
W.P.(C) No.18298 of 2014 (Padmanava Pradhan & others Vs.
State of Odisha & others), in Sanatan Sahoo Vs. State of
Odisha & others, reported in 2017 (II) ILR-CUT 1059,
Judgment dated 22.01.2019 passed in W.P.(C) No.24473 of
2012 (Anu Charan Patra Vs. Orissa State Agriculture and
Marketing Board and others), Judgment dated 22.06.2021
passed in WPC(OAC) No.2818 of 2014 (Sunil Barik Vs. State
of Odisha and others), Judgment of Division Bench of this
Court dated 06.04.2018 passed in W.P.(C) No.20518 of 2010
(Ranjeet Kumar Das Vs. State of Orissa and others) and
W.P.(C) No.5668 of 2016 Page 11 of 39
the Judgment of the Bombay High Court in Sachin Ambadas
Dawale & others Vs. State of Maharashtra & another,
passed in Writ Petition No.2046 of 2010 on 19.10.2013.
14. The facts, as detailed above, are undisputed.
Though in the impugned rejection order dated 9th September,
2015, as at Annexure-14, a stand has been taken by the
Collector-Cum-Chairman, Regulated Market Committee,
Bargarh that there is no evidence on record to testify that the
contractual employees i.e. the Petitioners, have been engaged
in a transparent manner following the procedure of
recruitment and adhering to the provisions of the ORV Act,
contrary to the said stand taken in the rejection order, a
Counter Affidavit was filed by the Opposite Party Nos.3 & 4 in
the earlier Writ Petition i.e. W.P.(C) No.15279 of 2011
(Annexure-12). Paragraphs 5 to 11 of the said Counter
Affidavit, being germane for proper adjudication of the present
lis, are extracted below:
"5. That considering the proposal; of
regularization of the Petitioners' appointment and
the clarification given by the deponent's office
about the justification for such regularization
General Manager of the Board was pleased to
regularize their appointment vide his letter dated
W.P.(C) No.5668 of 2016 Page 12 of 39
27.09.2008 (Annexure-11) indicating that after
regularization of the staff the expenditure should
be within prescribed limit fixed by the relevant
time.
6. That however, since no final decision could
be taken relating to regularization of their services, the
petitioners approached this Hon'ble Court agitating their
grievance by way of filing a writ petition vide W.P.(C)
No.7904 of 2010 which was disposed of on 6.7.2010.
7. That in obedience to the direction given by
this Hon'ble Court in order dated 6.7.2010. The
Chairman of R.M.C. while considering the case of the
petitioners for regularization of their appointment gave
emphasis on restriction imposed by the Commissioner-
cum-Secretary to Government, Co-operation Department
vide his letter bearing No.609/Co.op dated 3.3.2009,
since the same was in operation then. In the said
guidelines the limit for expenditure for the staffs salary
was prescribed and in terms of conditions laid down in
paragraph-3 of the said letter Bargarh R.M.C. is to be
classified as an 'A' Class R.M.C. and as per the
limitations stipulated in letter bearing No.609/Coop dated
3.3.2009, 10% of the revenue income could be spend
towards salary of staffs. So after evaluating the revenue
income and establishment expenditure of Bargarh R.M.C.
for the financial year it was assessed that an additional
expenditure of 17% was likely to be incurred on account
of such regularization which was beyond the prescribed
limit and since the establishment expenditure of the
R.M.C. was much more than the prescribed limit, the
opposite party no.5 did not have the occasion to consider
W.P.(C) No.5668 of 2016 Page 13 of 39
the case of these petitioner favourably and accordingly
had rejected their claim vide his order dated 21.9.2010.
Now again being aggrieved by the said order, the
petitioners have preferred the present writ petition.
Photostat copy of letter No.609/coop dated 3.3.2009 is
annexed herewith as Annexure-A/4.
8. That the deponent humbly submits after
filing of this writ petition the competent authority of the
State Government (High Power Committee being presided
by Hon'ble Minister of Cooperation as its Chairman) have
been pleased to make a revision of norms regarding
establishment expenditure (salary/wages) of employees
of Regulated Market Committee and while doing such
exercise the earlier guideline under Annexure-A/4 was
modified and the prescribed limits of expenditure on
account of salary & wages of staff for an 'A' Class R.M.C.
was enhanced from 10% to 30 %. Soon after this decision
was taken by the High Power Committee, the Board
informed all R.M.Cs of the State about the same vide its
letter No.2156 dated 26.8.2011, the copy of which is
annexed herewith as Annexure-B/4.
9. That in view of such modification in the
restriction with regard to establishment cost of the
R.M.C., the deponent humbly submits that the claim
of the petitioners can be entertained and therefore
their demand for regularization of their
appointment which has already been approved by
the Board can be fulfilled. The copy of the total
revenue income & expenditure (Income &
expenditure statement) for the marketing year
2012-13 clearly shows that the demands of the
W.P.(C) No.5668 of 2016 Page 14 of 39
petitioners if allowed the expenditures to be
incurred for their salary component shall be well
within the prescribed limitations enumerated in
annexure-B/4. The copy of Revenue income and
expenditure (Income & expenditure statement) for the
marketing year 2012-13 annexed herewith as Annexure-
C/4.
10. That, in the committee meeting of
R.M.C., Bargarh held on 23.03.2012 & 03.10.2012,
Resolutions have been passed vide Resolution No.13
and Resolution No.12 respectively and it has also
been decided in the said meetings to regularize the
services of the contractual employees of the R.M.C.,
Bargarh. Resolutions copy of the meeting held on
23.3.2012 & 3.10.2012 is annexed herewith as
Annexure-D/4.
11. That the deponent humbly submits that
the appointments of the petitioners were done as
per the prevailing norms and prior approval of the
Board was duly obtained & in course of their
engagement necessary compliance was made to
observe proper implementation of O.R.V. Rules.
Besides other employment Rules and procedures
were properly followed. The deponent humbly
submits as it transpires from the records available
in the office of the deponent that the recruitment
procedure followed for engagement of the petitioner
was regular one and was made as per law and in
view of relaxation made under Annexure-B/4, these
petitioners claim requires to be considered in
proper perspective by this Hon'ble Court and the
W.P.(C) No.5668 of 2016 Page 15 of 39
deponent humbly submits in case their appointment
is regularized, adequate funds can be made
available by proper budgetary allocations for
disbursement of salary components in favour of the
petitioners, which will be well within the prescribed
limit fixed by the Board."
(Emphasis supplied)
15. It is pertinent to mention here that the Secretary,
R.M.C., Bargarh, vide letter dated 26th August, 2007 wrote to
the General Manager, Odisha State Agricultural Marketing
Board, Bhubaneswar, to fill up 44 numbers of base post lying
vacant on contractual basis from amongst existing N.M.Rs
followed by communication dated 31st August, 2007 seeking
for necessary approval for de-reservation of the concerned
post on the ground that there are insufficient numbers of
efficient N.M.Rs in the concerned post as per 80 point roster
point and to take a decision to the said effect to de-reserve
and fill up the said post for efficient management of day to
day affairs of the R.M.C. Bargarh. Pursuant to the said
communication, the Appointment and Promotion Sub-
Committee of Regulated Market Committee, Bargarh, resolved
to engage the N.M.Rs in the vacant posts on contractual basis
after obtaining due approval from the O.S.A.M. Board for a
W.P.(C) No.5668 of 2016 Page 16 of 39
period of one year initially, which can be renewed
subsequently depending upon the requirement of the R.M.C.
Further, a query being made by the General Manager, Odisha
State Agricultural Marketing Board, Bhubaneswar vide letter
dated 13th August, 2008, each query was answered by the
Secretary, R.M.C., Bargarh vide communication dated 22nd
September, 2008 as at Annexure-10, the contents of which
are extracted below:
"OFFICE OF THE REGULATED MARKET COMMITTEE, BARGARH
No.84 Dated 22.9.2008
To
The General Manager,
Orissa State Agricultural Marketing Board,
Bhubaneswar
Sub: Clarification with justification for regularization of
services of contractual workers.
Ref:- 1) This office letter No.726 dtd.11.8.2008
2) Your letter No.3242 dtd. 13.8.2008
Sir,
With reference to the letters on the subject cited above I
am to submit herewith the compliance for further action at your
end as desired.
1. The 45 nos. of contractual workers are working
against the sanctioned posts.
2. The appointment sub-committee held on 31.8.2007
have resolved for engagement of 45 nos. of contractual
employee which have been already approved by the
O.S.A.M Board vide its letter No.4572 dtd.20.9.2007.
W.P.(C) No.5668 of 2016 Page 17 of 39
The copy of the proceeding of the sub-committee dtd.
31.8.2007 is enclosed here with for your kind reference.
3. O.R.V. Act. has been followed and the roster register is
maintained accordingly as per the guidance of
concerned by the District Welfare Officer, Bargarh
District. Who was one of the members of the
appointment sub-committee.
4. The present contractual employees were appointed as
such on examination of their performances and merit
by the appointment sub-committee held on 31.8.2007.
Further the performances and merit of those
employees are satisfactory at present.
5. After regularization of the services of the contractual
employees the total establishment expenditure shall be
approximately Rs.90,69,036.00 against the expected annual
income of Rs.2,47,41,471.00 (i.e. excluding 1% market fee
for infrastructure etc.) This calculation to 36.65%, which is
within the norms fixed by the O.S.A.M., Board.
6. Up to July, 2008 the total revenue income of this R.M.C. is
Rs.3,20,24,850.00 and the expenditure is 1,07,58,432.25. A
copy of the income & expenditure statement is enclosed
herewith for fovour of kind reference.
In view of the above facts necessary order may please be
passed and approval accorded accordingly.
Yours faithfully
Sd/-
SECRETARY
R.M.C., Bargarh
Enclosed:
1. Copy of proceeding of
Appointment Sub-Committee
On dtd. 31.8.2007
2. Copy of letter No.4572 dtd. 20.9.07
Of O.S.A.M. Board
3. Copy of revenue income &
Expenditure statement up to July, 08"
(Emphasis supplied)
W.P.(C) No.5668 of 2016 Page 18 of 39
16. Being so clarified, the General Manager, Odisha
State Agricultural Marketing Board, Bhubaneswar, vide letter
dated 27th September, 2008, communicated to the Secretary,
R.M.C., Bargarh regarding approval of the said proposal for
regularization of 45 numbers of contractual workers, which is
extracted below:
"OFFICE OF THE ORISSA STATE AGRICULTURAL MARKETING BAORD:
BHUBANESWAR
No.3738 Date: 27.9.08
TO
The Secretary,
R.M.C., Bargarh
Sub: Regularization of the contractual workers.
Ref:- Your letter No.726 Date.10.08.2008 & letter No-841
Dt.22.09.08. This is office letter No.-3242 Dt.13.08.08.
Sir,
With reference to the letter on the subject cited above, I
am directed to inform you that, the Hon'ble Chairperson,
OSAM Board have been pleased to approve the proposal
for regularization the 45 nos of contractual workers. After
rergularisation of these staff, the expenditure should be within
the prescribed limit fixed by O.S.A.M. Board.
The R.M.C. is advised to observe due formalities in this
respect.
Yours faithfully,
Sd/-
General Manager"
(Emphasis supplied)
17. Despite such approval of the proposal for
regularization of services of the Petitioners, the impugned
W.P.(C) No.5668 of 2016 Page 19 of 39
order dated 9th September, 2015, as at Annexure-14, has
been passed by the Collector-Cum-Chairman, Regulated
Market Committee, Bargarh on the plea that there is no
evidence on record to testify that the contractual employees
i.e. the present Petitioners, have been engaged in a
transparent manner following the procedure of recruitment
and adhering to the provisions of the ORV Act.
18. At this juncture, it is apt to deal with various
provisions under the Orissa Agricultural Produce Market Act,
1956. Section 2 (ii-a) of the Act, 1956 defines "Board", which
means the Orissa State Agricultural Marketing Board
established under Section 18-A of the Act. Section 2(viii)
provides "Market Committee", which means a Committee
established under Section 5. Chapter-II deals with
constitution of markets and Market Committee. Section 5
provides establishment of Market Committee whereas Section
6 envisages about constitution of Market Committee.
Chapter-III deals with incorporation of Market Committee, its
power and duties. Section 8 deals with appointment of sub-
committee or joint committee and Section 9 deals with
employment of staff. Chapter-IV-A deals with constitution and
W.P.(C) No.5668 of 2016 Page 20 of 39
powers of the Board. Section 18-A deals with establishment of
the Board and Section 18-B deals with powers and functions
of the Board. Section 27 deals with power to make rule. In
exercise of power conferred under Section 27 of the Orissa
Agricultural Produce Market Act, 1956 (for short "the Act,
1956"), the State Government framed Rules called "The Orissa
Agricultural Produce Markets Rules, 1958", which shall apply
to any market area or areas notified as such under Section 4
of the Act, 1956. Part-III of Rules, 1958 deals with Market
Committee, its Chairman, Officers and servants and disputes
Sub-Committee. Rule-33 deals with servants of the Market
Committee. Rule-33, which has been substituted by O.G.E.
No.794 dated 03.08.1996, reads thus:-
"33. Servants of the Market Committee :- (1) The Market
Committee may appoint such officers and servants as
may be necessary for the proper management of the
market :
Provided that the superior Officers of the Committee
shall be appointed only with the previous approval of
the Board.
(2)Superior Officers shall be the Secretary, Clerks and
such officers and servants of the Market Committee as
the Board may determine from time to time.
(3)The terms and conditions of service of superior
officers shall be such as may be approved by the Board
W.P.(C) No.5668 of 2016 Page 21 of 39
and those of others shall be such as the Market
Committee may decide from time to time.
(4)The Market Committee shall be the Disciplinary
Authority in respect of all officers and servants of the
Committee :
Provided that the removal or dismissal of superior
officers as a measure of punishment shall be subject to
the approval of the Board."
19. In view of the aforementioned provisions
contained in the Rule-33, power has been vested with the
Market Committee which may appoint such Officers and
servants, as may be necessary for proper management of the
market, provided that the superior officers of the Committee
shall be appointed only with the previous approval of the
Board. As per sub-rule (2) of Rule-33, superior officers shall
be the Secretary, Clerks and such Officers and servants of the
Market Committee, as the Board may determine from time to
time. As per sub-rule (3) of Rule-33, the terms and conditions
of service of superior Officers shall be such as may be
approved by the Board and those of others shall be such as
the Market Committee may decide from time to time. So it
clarifies the position that the terms and conditions of service
of Superior Officers are required to be approved by the Board
W.P.(C) No.5668 of 2016 Page 22 of 39
and so far as other employees are concerned, it is the Market
Committee, which has to take a decision and fix the terms
and conditions of service. The Yardman post, not being a
superior officer post, the Market Committee is competent to
determine the terms and conditions of service of such
employee.
20. From the pleadings made in the Writ Petition, so
also contents of the documents appended to the Writ Petition,
as extracted above, it is amply clear that the Petitioners, who
were earlier working as N.M.Rs, were appointed as
contractual workers against sanctioned posts. The
Appointment Sub-Committee held on 31st August, 2007
resolved for engagement of those 45 numbers of contractual
employees, which had already been approved by the OSAM
Board vide its letter dated 20th September, 2007. That apart,
ORV Act was followed and the Roster Register was maintained
accordingly as per the guidance of concerned District Welfare
Officer, Bargarh District, who was one of the members of the
Appointment Sub-Committee. That apart, the Petitioners, who
are engaged as contractual employees, were appointed as
such on examination of their performances and merit by the
W.P.(C) No.5668 of 2016 Page 23 of 39
Appointment Sub-Committee held on 31st August, 2007. It
was found by the Appointment Sub-Committee that their
performances are satisfactory. That apart, with regard to
financial implication, it was intimated to the General
Manager, OSAM Board, vide communication dated 22nd
September, 2008 that after regularization of the services of
these Petitioners, the total establishment expenditure shall be
within the norms fixed by the OSAM Board. Pursuant to such
communication, the OSAM Board had been pleased to accord
approval of the said proposal of regularization of services of
the Petitioners, who are at present working as contractual
workers since 2007 and prior to such engagement, all were
working as N.M.Rs in R.M.C.,Bargarh.
21. In Narendra Kumar Tiwari (Supra), vide
paragraphs-8, 10 & 11, the apex Court held as follows:
"8. The purpose and intent of the decision in
Umadevi (3) was therefore two-fold, namely, to prevent
irregular or illegal appointments in the future and
secondly, to confer a benefit on those who had been
irregularly appointed in the past. The fact that the
State of Jharkhand continued with the irregular
appointments for almost a decade after the
decision in Umadevi (3) is a clear indication that it
believes that it was all right to continue with
W.P.(C) No.5668 of 2016 Page 24 of 39
irregular appointments, and whenever required,
terminate the services of the irregularly appointed
employees on the ground that they were irregularly
appointed. This is nothing but a form of
exploitation of the employees by not giving them
the benefits of regularization and by placing the
sword of Damocles over their head. This is precisely
what Umadevi (3) and Kesari sought to avoid.
10. The High Court as well as the State of
Jharkhand ought to have considered the entire issue in a
contextual perspective and not only from the point of view
of the interest of the State, financial or otherwise - the
interest of the employees is also required to be kept in
mind. What has eventually been achieved by the State of
Jharkhand is to short circuit the process of regular
appointments and instead make appointments on an
irregular basis. This is hardly good governance.
11. Under the circumstances, we are of the view
that the Regularisation Rules must be given a
pragmatic interpretation and the appellants, if
they have completed 10 years of service on the date
of promulgation of the Regularisation Rules, ought
to be given the benefit of the service rendered by
them. If they have completed 10 years of service
they should be regularized unless there is some
valid objection to their regularization like
misconduct etc."
(Emphasis supplied)
W.P.(C) No.5668 of 2016 Page 25 of 39
22. In Nihal Singh (Supra), vide paragraphs-22, 23
and 35 to 38, the apex Court has observed as follows:
"22. It was further declared in Umadevi (3) case
that the jurisdiction of the Constitutional Courts under
Article 226 or Article 32 cannot be exercised to compel the
State or to enable the State to perpetuate an illegality.
This court held that compelling the State to absorb
persons who were employed by the State as casual
workers or daily-wage workers for a long period on the
ground that such a practice would be an arbitrary
practice and violative of Article 14 and would itself offend
another aspect of Article 14 i.e. the State chose initially to
appoint such persons without any rational procedure
recognized by law thereby depriving vast number of other
eligible candidates who were similarly situated to
compete for such employment.
23. Even going by the principles laid down in
Umadevi's case, we are of the opinion that the State of
Punjab cannot be heard to say that the appellants are not
entitled to be absorbed into the services of the State on
permanent basis as their appointments were purely
temporary and not against any sanctioned posts created
by the State.
35. Therefore, it is clear that the existence of the
need for creation of the posts is a relevant factor
reference to which the executive government is required to
take rational decision based on relevant consideration. In
our opinion, when the facts such as the ones
obtaining in the instant case demonstrate that
W.P.(C) No.5668 of 2016 Page 26 of 39
there is need for the creation of posts, the failure of
the executive government to apply its mind and
take a decision to create posts or stop extracting
work from persons such as the appellants herein
for decades together itself would be arbitrary
action (inaction) on the part of the State.
36. The other factor which the State is required to keep in
mind while creating or abolishing posts is the financial
implications involved in such a decision. The creation of
posts necessarily means additional financial burden on
the exchequer of the State. Depending upon the priorities
of the State, the allocation of the finances is no doubt
exclusively within the domain of the Legislature.
However in the instant case creation of new posts
would not create any additional financial burden to
the State as the various banks at whose disposal
the services of each of the appellants is made
available have agreed to bear the burden. If
absorbing the appellants into the services of the State
and providing benefits at par with the police officers of
similar rank employed by the State results in further
financial commitment it is always open for the State to
demand the banks to meet such additional burden.
Apparently no such demand has ever been made by the
State. The result is - the various banks which avail the
services of these appellants enjoy the supply of cheap
labour over a period of decades. It is also pertinent to
notice that these banks are public sector banks. We are
of the opinion that neither the Government of
Punjab nor these public sector banks can continue
W.P.(C) No.5668 of 2016 Page 27 of 39
such a practice consistent with their obligation to
function in accordance with the Constitution.
Umadevi's judgment cannot become a licence for
exploitation by the State and its instrumentalities.
37. For all the above mentioned reasons, we are of the
opinion that the appellants are entitled to be absorbed in
the services of the State. The appeals are accordingly
allowed. The judgments under appeal are set aside.
38. We direct the State of Punjab to regularize the
services of the appellants by creating necessary posts
within a period of three months from today. Upon such
regularization, the appellants would be entitled to all the
benefits of services attached to the post which are similar
in nature already in the cadre of the police services of the
State. We are of the opinion that the appellants are
entitled to the costs throughout. In the circumstances, we
quantify the costs to Rs.10,000/- to be paid to each of the
appellants."
(Emphasis supplied)
23. The coordinate Bench in Padmanava Pradhan
(Supra), relying on paragraph-7 of the Judgment of the apex
Court in Narendra Kumar Tiwari (Supra), held as follows:
"10. In the backdrop of the aforesaid factual
exposition and after having bestowed my anxious
consideration to the rivalised submissions, the cases of
the petitioners deserve consideration for regularization in
view of the following facts reasons and judicial
pronouncement.
W.P.(C) No.5668 of 2016 Page 28 of 39
i) Admittedly, all the petitioners in pursuance
of the advertisement and after undergoing the
process of selection were appointed as Executive
Assistant on contractual basis since 2012. In the
meantime they have completed more than eight
years of contractual services against the post of
Executive Assistant which has been subsequently
re-designated as Junior Assistant on the
recommendation of the Syndicate Sub-committee in
the year 2013.
ii) Government of Odisha vide Notification dated
16th January,2014 has published a Contractual Rule
2013 wherein on completion of six years of contractual
services, one will be eligible for regularization in service.
Since the petitioners have completed the requisite period
of services, their services ought to have been regularized
by the University in the light of the Notification of the G.A.
Department, Government of Odisha.
iii) Much has been argued on behalf of the State
that initial appointment of the petitioners was against a
non-sanctioned post. Therefore, regularization of the
petitioners against the non sanctioned post is not legally
permissible, but the letter of the Government of Odisha, in
the Department of Higher Education dated 08.07.2008
which pertains to the Review committee meeting
regarding filling up of the teaching and non-teaching
posts in Sambalpur University indicates that the said
Review committee meeting was being attended by the
members of the Higher Education department, Finance
Department and by a conscious decision, the post of
Junior Assistant was re-designated as Executive
W.P.(C) No.5668 of 2016 Page 29 of 39
Assistant. Accordingly, the advertisement was published
and the petitioners appeared the selection process and
they were appointed against the 14 post of Executive
Assistant in lieu of Junior Assistant. Subsequently in the
year 2013 by virtue of the decision of the Syndicate
subcommittee the post of Executive Assistant has been
re-designated as Junior Assistant and the petitioners
have been continuing against the post of Junior Assistant
since 2013 taking into consideration the uninterrupted
services rendered by the petitioners against the
redesignated post of Junior Assistant and on perusal of
the Notification of the State Government regarding
regularisation of contractual appointees, it is quite
luculent that the petitioners have rendered more than the
requisite period of service against the sanctioned and
vacant post of Junior Assistant to stake their claim for
regularization of services.
iv) So far as regularization of services, the Hon'ble
Apex Court in a catena of decisions have succinctly and
illuminatively dealt with the concept of regularization. In
the case of Narendra Kumar Tiwari and others-vrs.-State
of Jharkhand and others : (2018) 8 SCC 238, in
paragraph-7, it was held that
"The purpose and intent of the decision in
Umadevi (3) was therefore twofold, namely, to
prevent irregular or illegal appointments in the
future and secondly, to confer a benefit on
those who had been irregularly appointed in e
past. The fact that the State of Jharkhand
continued with the irregular appointments for
almost a decade after the decision in Umadevi
W.P.(C) No.5668 of 2016 Page 30 of 39
(3) is a clear indication that it believes that it
was all right to continue with irregular
appointments and whenever required,
terminate the services of the irregularly
appointed employees on the ground that they
were irregularly appointed. This is nothing but
a form of exploitation of the employees by not
giving them the benefits of regularisation and
by placing the sword of Damocles over their
head. This is precisely what Umadevi and
Kesari sought to avoid."
24. The coordinate Bench in Sanatan Sahoo (Supra),
relying on paragraph-53 of the Judgment of the apex Court in
Secretary State of Karnataka & others Vs. Umadevi &
others, reported in(2006) 4 SCC 1, so also the Judgment in
State of Karnataka & other Vs. M.L. Kesari & others,
reported in (2010) 9 SCC 247, held as follows:
"7. Law is well settled in the case of Secretary
State of Karnataka and others v. Umadevi and
others, reported in (2006) 4 SCC 1, wherein at
paragraph 53 it has been held as thus:-
"53. One aspect needs to be clarified. There may
be cases where irregular appointments (not illegal
appointments) as explained in S.V. NARAYANAPPA
(supra), R.N. NANJUNDAPPA (supra), and B.N.
NAGARAJAN (supra), and referred to in paragraph
15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made and
W.P.(C) No.5668 of 2016 Page 31 of 39
the employees have continued to work for ten years
or more but without the intervention of orders of
courts or of tribunals. The question of regularization
of the services of such employees may have to be
considered on merits in the light of the principles
settled by this Court in the cases above referred to
and in the light of this judgment. In that context, the
Union of India, the State Governments and their
instrumentalities should take steps to regularize as
a one-time measure, the services of such irregularly
appointed, who have worked for ten years or more
in duly sanctioned posts but not under cover of
orders of courts or of tribunals and should further
ensure that regular recruitments are undertaken to
fill those vacant sanctioned posts that require to be
filled up, in cases where temporary employees or
daily wagers are being now employed. The process
must be set in motion within six months from this
date. We also clarify that regularization, if any
already made, but not subjudice, need not be
reopened based on this judgment, but there should
be no further by-passing of the constitutional
requirement and regularizing or making permanent,
those not duly appointed as per the constitutional
scheme."
However in the case of State of Karnataka & others
v. M.L. Keshari & others, reported in (2010) 9 SCC
247, the principle decided by the Apex Court in the case
of Umadevi (supra) has been further clarified and
followed.
8. This Court in the case of Prakash Kumar
Mohanty v. State of Odisha and others (W.P.(C)
No.22159 of 2012 decided on 28.02.2017) referring to the
W.P.(C) No.5668 of 2016 Page 32 of 39
decisions in the case of Umadevi (supra) and M.L. Kesari
(supra) directed the competent authority to take a
decision on the grievance of the petitioner in the light of
the observations made in paragraph-53 of the Umadevi
case within eight weeks from the date of receipt of copy
of the order.
9. Admittedly in the present case, the petitioner
having the requisite qualification was engaged as Data
Entry Operator since September, 1995 and he has been
continuing as such till date without the intervention of the
Courts. He approached the Tribunal in the year 2013 for
his regularization before the notification issued by the
State Government regarding Odisha Group 'C' and Group
'D' posts (contractual appointment) Rules, 2003. The
recruitment rule came into force only in the year 2008
and the rule regarding contractual appointment as
contended by the State Government was followed latter
on. Thus the engagement of the petitioner at best
can be termed as irregular engagement and not
illegal engagement. That apart, it is also admitted
that sanctioned posts are available since 2009 and
the petitioner had also completed more than ten
years by then. In view of the discussions made
hereinabove paragraphs and in the peculiar facts
and circumstances of this case, this Court is of the
opinion that the Tribunal has lost sight of facts in
right perspective in the light of the aforesaid
decisions of the apex Court. Thus, this Court set
aside the impugned order dated 14.05.2015 passed
in O.A. No.3421 of 2013 and remits the matter back
to the authorities to regularize the service of the
W.P.(C) No.5668 of 2016 Page 33 of 39
petitioner by applying the aforementioned ratio and
to extend consequential service benefits to the
petitioner accordingly, within a period of eight
weeks."
(Emphasis supplied)
25. In Anu Charan Patra (supra), the Coordinate
Bench has held as follows:
"8. In view of the aforementioned provisions contained in
the Rule-33, power has been vested with the market
committee which may appoint such officers and servants,
as may be necessary for proper management of the market,
provided that the superior officers of the committee shall be
appointed only with the previous approval of the Board. As
per sub-rule (2) of Rule-33, superior officers shall be the
Secretary, Clerks and such officers and servants of the
market committee, as the Board may determine from time to
time. As per sub-rule (3) of Rule-33, the terms and
conditions of service of superior officers shall be such as
may be approved by the Board and those of others shall be
such as the market committee may decide from time to time.
So it clarifies the position that the terms and conditions of
service of superior officers are required to be approved by
the Board and so far as other employees are concerned,
it is the market committee which has to take a
decision and fix the terms and conditions of service.
The Yardman, being not a superior officer post, the
market committee is competent to determine the
terms and conditions of service of such employee."
(Emphasis supplied)
W.P.(C) No.5668 of 2016 Page 34 of 39
Vide the said Judgment, relying on the Judgment
of the apex Court in Praveen Singh vs. State of Punjab,
reported in AIR 2001 SC 152 and in Om Kumar vs. Union of
India, reported in AIR 2000 SC 3689 in paragraph-14 it was
observed as follows.
"14. In view of the law laid down by the apex
Court as discussed above, there is no iota of doubt that
when the recommendation has been made by the
appointment sub-committee with regard to regularization
of services of the petitioner and the same was approved
by the Board, the same should have given effect to by
opposite parties no.2 and 3. Instead of doing so, for some
reason or other, the opposite parties no.2 and 3 have
tried not to implement the same resulting in depriving the
petitioner of his valuable right to continue against a
regular post for which he has been selected by following
due procedure by the appointment subcommittee and
approved by the Board."
26. In Sunil Bark (supra), the Coordinate Bench has
held as follows:
"13. In State of Jammu and Kashmir v.
District Bar Association, Bandipora, (2017) 3 SCC
410, wherein a distinction has been made with regard to
"irregular" and "illegal" engagement, referring to the
exception carved out in Umadevi(3) mentioned supra, in
paragraph-12 of the said judgment it has been stated as
follows:
W.P.(C) No.5668 of 2016 Page 35 of 39
"12. The third aspect of Umadevi (3) which
bears notice is the distinction between an
"irregular" and "illegal" appointment. While
answering the question of whether an
appointment is irregular or illegal, the Court
would have to enquire as to whether the
appointment process adopted was tainted by the
vice of non-adherence to an essential prerequisite
or is liable to be faulted on account of the lack of
a fair process of recruitment. There may be
varied circumstances in which an ad hoc or
temporary appointment may be made. The power
of the employer to make a temporary
appointment, if the exigencies of the situation so
demand, cannot be disputed. The exercise of
power however stands vitiated if it is found that
the exercise undertaken (a) was not in the
exigencies of administration; or (b) where the
procedure adopted was volatile of Articles 14 and
16 of the Constitution; and/or (c) where the
recruitment process was overridden by the vice of
nepotism, bias or mala fides."
14. Applying the above principles to the
present case, since the petitioner has been
discharging the duties against a sanctioned
vacancy in the post of Barber with the knowledge of
the employer on daily wage basis for a quite long
time, after being duly selected by following due
process of selection in the post of Home Guard, and
his engagement is due to the emergent situation,
the engagement may be "irregular" one, but his
service is to be regularized with all consequential
benefits in accordance with law. This Court directs
W.P.(C) No.5668 of 2016 Page 36 of 39
accordingly. The entire exercise shall be completed within
a period of four months from the date of
communication/production of authenticated/certified
copy of this judgment by the petitioner."
(Emphasis supplied)
27. The Division Bench of this Court in Ranjeet
Kumar Das (Supra), relying on the Judgments of the apex
Court In Uma Devi (supra), in M.L. Kesari (supra), in Nihal
Singh (supra) and in State of Jammu and Kashmir Vs.
District Bar Association, Bandipora, reported in (2017) 3
SCC 410 held that if the petitioner has been engaged against
an existing vacancy, by following due process of selection, and
continued for a quite long period and his engagement is due
to the emergent situation, the appointment being "irregular"
one, his services are to be regularized in accordance with law.
28. In view of the discussions made, so also settled
position of law as detailed above, including the Judgments
passed by the coordinate Bench in Anu Charan Patra (supra),
where the Petitioner was also working as Yardman (N.M.R)
under the Nimapara Regulated Marketing Committee,
Nimapara, this Court is of the view that the services of the
Petitioners should have been regularized against the vacant
posts of "Yardman" as per the recommendation made by the
W.P.(C) No.5668 of 2016 Page 37 of 39
Appointment Sub-Committee, which was duly approved by
the Board, as communicated by the General Manager, Orissa
State Agricultural Marketing Board vide letter dated 27th
September, 2008. This Court is of further view that the
impugned order of rejection dated 9th September, 2015 under
Annexure-14, vide which the representation of the Petitioners
for regularization of their services was rejected, being contrary
to the admitted facts as detailed above, so also documentary
proof on record, is illegal, unjustified and product of non-
application of mind and is liable to be set aside. Accordingly,
the said rejection order dated 9th September, 2015, as at
Annexure-14, is hereby set aside.
29. In the aforesaid facts and circumstances, this
Court directs the Opposite Parties, more particularly,
Opposite Party Nos.4 & 5 to regularize the services of the
Petitioners with effect from 27th September, 2008 i.e. the date
on which the General Manager, Orissa State Agricultural
Marketing Board, Bhubaneswar communicated the Secretary
R.M.C., Bargarh (Annexure-11) to regularize the services of
the Petitioners, and to grant them all consequential service
and financial benefits, as due and admissible, by making due
W.P.(C) No.5668 of 2016 Page 38 of 39
calculation thereof within a period of four months from the
date of communication of the certified copy of this Judgment.
30. With the aforesaid direction the Writ Petition
stands allowed and disposed of. However, there shall be no
order as to cost.
...................................
S.K. MISHRA, J.
Orissa High Court, Cuttack The 21st of July, 2023/Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Jul-2023 14:42:55 W.P.(C) No.5668 of 2016 Page 39 of 39